Opinion
3:24-cv-00199-SLG-KFR
11-05-2024
ROBERT OTTEN, SR., Petitioner, v. STATE OF ALASKA, Respondent.
ORDER RE REPORT AND RECOMMENDATION
SHARON L. GLEASON UNITED STATES DISTRICT JUDGE
Before the Court at Docket 1 is self-represented Petitioner Robert Otten, Sr.'s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”) and at Docket 2, a Motion for Leave to Proceed in Forma Pauperis (“Motion”). The Petition and Motion were referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 4, Judge Reardon issued his Report and Recommendation, in which he recommended that the Petition be dismissed without prejudice and that the Motion be denied as moot. No objections to the Report and Recommendation were filed.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute provides that a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” A court is to “make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made.” However, § 636(b)(1) does not “require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”
Id.
Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
The magistrate judge recommended that the Court dismiss without prejudice the Petition for a Writ of Habeas Corpus Under 28 U.S.C.§ 2241 and deny as moot the Motion for Leave to Proceed in Forma Pauperis. The Court has reviewed the Report and Recommendation and agrees with its analysis. Accordingly, the Court adopts the Report and Recommendation in its entirety, and IT IS ORDERED that the Petition for a Writ of Habeas Corpus Under 28 U.S.C.§ 2241 is DISMISSED without prejudice and the Motion for Leave to Proceed in Forma Pauperis is DENIED as moot.
The Clerk of Court shall enter a final judgment accordingly. A certificate of appealability shall not be issued by this Court because the Court finds reasonable jurists could not debate that dismissal of the Petition is warranted; Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals
See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted only if applicant made “substantial showing of the denial of a constitutional right,” i.e., showing that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further” (internal quotations and citations omitted)).
DATED this 5th day of November 2024, at Anchorage, Alaska.